JUDGMENT

1. The dispute in this appeal relates to a certain house and a shop standing in Hathras city. They practically formed one building and belonged to Jamna Das, who on the 4th June, 1890, made a gift thereof in favour of the plaintiff. Jamna Das died in Sambat 1961. Shortly after wards the plaintiff hypothecated the said house including the shop, by way of a simple mortgage, in favour of Makhan Lal for a sum of RS. 100. The allegation of the plaintiff was that that mortgage was intended for the benefit of Bhola Nath who held a contiguous house and that about two year later Bhola Nath took possession of the mortgaged property on an agreement to pay rent at Rs. 2 per mensem, out of which Re. 1 per mensem was to be credited in payment of interest due on the mortgage and the balance in payment of the principal due thereon.

2. The plaintiff goes on to say that in defiance of that arrangement a suit was brought by Makhan Lal for recovery of the money due on the mortgage, and a decree was eventually obtained on the 24th of August, 1916, which the plaintiff had ultimately to satisfy. The plaintiff next brought a suit against Balkishen, the son of Bhola Nath, for possession of the said house on an allegation that he was in occupation thereof as a tenant and was refusing to vacate the same in suite of notice. There was also a claim laid for damages on account of certain materials said to have been removed by Balkishen. That suit was referred to arbitration, but the plaintiff did not appear before the arbitrator, who consequently reported that the suit ought to fail for default of the plaintiff. The defendant was present before the arbitrator to prosecute his defence. The Court before which the suit was pending dismissed the suit for default, acting under the provisions of Order 9, rule 8 of the Code of Civil Procedure.

3. The present suit has been filed by the same plaintiff for the recovery of possession of the same property. The allegation now made is that Bhola Nath had bean put in possession of the house in lieu of the principal and interest payable to him under the mortgage of the 13th August, 1904; that Bhola Nath was succeeded by Balkishen and that Balkishen had wrongfully denied in the previous suit that he was a tenant. The date of the denial of the title of the plaintiff by Balkisben in the previous suit has been treated as the cause of action for the present suit. The defendant Balkishen denied the title of the plaintiff, and pleaded that be had been in adverse possession of the disputed property. He also denied that Bhola Nath bad been in occupation of the said property as tenant and alleged that the suit was without any cause of action and not maintainable.

4. The Court of first instance found that the plaintiff was the owner of the disputed property and that Bhola Nath was occupying the same as a tenant under an arrangement that the rent was to be credited in satisfaction of the money due on the mortgage of the 13th August, 1904. It was further found that the dismissal of the previous suit did not bar the institution of the present one because the cause of action for the present suit was not the same as that on which the previous suit was instituted. The lower appellate Court was not satisfied that Bhola Nath had taken the house on an agreement to pay rent in the manner alleged by the plaintiff, but it was of opinion that the possession of Bhola Nath and after him of Balkishen was in any ease permissive and that the plaintiff was entitled to eject the defendant from the disputed property.

5. It is urged on behalf of the defendant-appellant that the claim is barred by limitation, because the defendant was in adverse possession of the disputed property, and it is also contended that the dismissal of the previous suit operates as a bar to the maintenance of the present one. In regard to the former, the finding of the Courts below is conclusive. The Court of first instance was of opinion that the agreement on which the plaint